April 17, 2019

Archives for June 17, 2013

Bar Associations Offer Legal Assistance to Wildfire Victims

The Denver and El Paso County Bar Associations will offer three events where people affected by wildfires can ask attorneys legal questions at no cost. “We are saddened to see our community again face a devastating wildfire, but we hope to offer clarity and guidance for those who have been impacted by the Black Forest Fire,” said EPCBA Executive Director Claire Anderson.

Events include:

Ask-A-Lawyer—The El Paso County Bar Association will host Ask-A-Lawyer for victims of the Black Forest Fire from 2 to 6 p.m. on Wednesday, June 19, at the Disaster Assistance Center at the Citizens Service Center, located at 1675 W. Garden of the Gods Road. No appointment is required.

Lawline 9—The Denver Bar Association will dedicate its Lawline 9, a call-in program at 9News, to answering legal questions related to the wildfires. The Lawline 9 will run from 4 to 6:30 p.m. on Wednesday, June 19. Callers can reach attorneys at 303-698-0999.

Call-A-Lawyer—The EPCBA will also host a call-in program from 7 to 9 p.m. on Thursday, June 20. Callers can reach attorneys at 719-471-0380, and they will answer general legal questions and those related to the wildfire.

“I’m proud to see Colorado Bar Association members from across the state stepping up to lend a hand to their fellow Coloradans and hope we can offer some assistance during this tragic event,” said Colorado Bar Association President Mark A. Fogg.

 

Tenth Circuit: Petition for Writ of Habeas Corpus Granted Because Murders Occurred in Indian Country

The Tenth Circuit Court of Appeals published its opinion in Magnan v. Trammell on Friday, June 14, 2013.

On March 3, 2004, James Howard and Karen Wolf were shot to death at a house in rural Seminole County, Oklahoma. Two other people, Lucilla McGirt and Eric Coley, were shot and wounded at the house.  McGirt died approximately two weeks later from complications of her gunshot wounds. Coley survived his injuries. All of the victims except Howard were enrolled members of the Seminole Nation of Oklahoma.

Petitioner David Magnan pleaded guilty in Oklahoma state court to three counts of murder in the first degree and one count of shooting with intent to kill. Magnan was sentenced to death for each of the murder convictions and to a term of life imprisonment on the remaining conviction. Magnan argued on direct review that the crimes occurred in “Indian country,” 18 U.S.C. § 1151, and that, as a result, the state trial court lacked jurisdiction over the crimes. The Oklahoma Court of Criminal Appeals (OCCA) held, however, that a 1970 conveyance to the Housing Authority of the Seminole Nation of Oklahoma extinguished all Indian lands restrictions that had previously attached to the surface estate of the property where the crimes occurred. The OCCA further held that, even assuming that restrictions remained on 4/5ths of the mineral estate, such interest was unobservable and insufficient to deprive the State of Oklahoma of criminal jurisdiction over the surface property at issue.

In a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, Magnan again asserted that the crimes occurred in “Indian country” and that the state trial court was without jurisdiction. The district court denied Magnan’s petition but granted him a certificate of appealability.

The Tenth Circuit only addressed the status of the surface estate and agreed with Magnan that the location where the crimes occurred was “Indian country” pursuant to 18 U.S.C. § 1151. The location where the crimes occurred was “Indian country” because the requirements to extinguish the restrictions placed on Indian lands by Congress were not met. As a result, the state trial court lacked jurisdiction over the crimes. The federal government had exclusive criminal jurisdiction over his crimes pursuant to the Indian Major Crimes Act, 18 U.S.C. § 1153.

Consequently, the Tenth Circuit reversed the judgment of the district court and remanded with instructions to grant Magnan’s petition for writ of habeas corpus.

 

Tenth Circuit: No Merit to Double-Jeopardy Claims in Charges Stemming from Shooting of US Marshals

The Tenth Circuit Court of Appeals published its opinion in United States v. Angilau  on Friday, June 14, 2013.

This appeal arises from the latest in a series of four prosecutions by Utah and federal authorities of Defendant Siale Angilau on charges stemming from the shooting of two deputy United States marshals in August 2007. In the case before the Tenth Circuit, Defendant was indicted on four counts by a grand jury for the United States District Court for the District of Utah.

The four counts were as follows: one count charged racketeering conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO); the other three were based on the shooting: assaulting a federal officer (the assault count); assault with a dangerous weapon in aid of racketeering  (the VICAR count); and using or carrying a firearm during a crime of violence (the firearm count).

Defendant moved to dismiss the three shooting-related charges as barred by double jeopardy. He founded his argument on events in the first case brought against him by the federal government, in which prosecutors dismissed charges of assaulting the marshals. The district court ordered that the dismissal be with prejudice, because the government had not provided sufficient reasons for seeking dismissal.

Defendant argued that the three counts must be dismissed because they were based on the previously dismissed charges. The court granted his motion as to the assault count, which it ruled was identical to the assault charge in the first federal case, but it denied the motion as to the VICAR and firearm counts. Also, it rejected Defendant’s separate argument that all charges against him should be dismissed because the government had violated his due process rights by repeatedly bringing and dismissing charges against him. Defendant appealed while his case was pending trial.

On appeal, he continued to press his due-process challenge to both the firearm and VICAR charges. He also maintained that the Double Jeopardy Clause compelled dismissal of the firearm count, because it was the same offense as the firearm charge dismissed with prejudice in the first federal case. He added the new argument that the double-jeopardy doctrine of collateral estoppel barred the government from prosecuting the VICAR and firearm charges because facts necessary to convict him on these charges were found in his favor when the charges in the first federal case were dismissed with prejudice.

The Tenth Circuit held that (1) it had jurisdiction to hear Defendant’s double-jeopardy claims but lacked jurisdiction to hear Defendant’s due-process claim before final judgment in the criminal proceedings; (2) there was no merit to his double-jeopardy claim that the firearm count in this case was the same as the firearm count dismissed with prejudice in the first federal case, because the predicate crime of violence in the prior case had different elements than the predicate crime of violence in this case (the VICAR offense); and (3) neither the firearm charge nor the VICAR charge was barred by collateral estoppel because the previous dismissal did not resolve in his favor any element of the two charges.